New York’s highly effective hospital teams have taken steps to get a federal COVID-19 lawsuit towards a Lengthy Island nursing residence tossed — calling it a doubtlessly precedent-setting case that might have damaging, “far-ranging penalties” for the business.
The Better New York Hospital Affiliation and NYS Well being Care Affiliation filed papers in Brooklyn federal court docket on Friday difficult the go well with introduced by Vivian Zayas, whose mother died of coronavirus final yr following her keep at Our Woman of Comfort.
Zayas, who sued final August, is in search of to carry the West Islip nursing residence liable in her mother’s loss of life, saying it didn’t take ample preventative measures to maintain the killer bug from spreading.
“They know my case may open the door for victims in search of accountability. We have to shield the residents, not the underside line of those amenities,” Zayas stated.
“We have to see accountability and reform — even it’s one nursing residence at a time.”
On the coronary heart of Zayas’ case is the repeal of the Emergency or Catastrophe Therapy Safety Act, a state legislation that shielded hospitals and nursing houses throughout New York from medical malpractice and negligence claims over their dealing with of the pandemic.
The controversial legislation was greenlit by Gov. Cuomo — who’s confronted intense scrutiny over his dealing with of the pandemic in nursing houses — and the state legislature within the spring of 2020 earlier than it was repealed altogether in April.
Together with her lawsuit, Zayas believes the repeal must be retroactively utilized again to March 2020 — although the hospital and health-care foyer argues that may take a devastating toll on the business.
“Discovering the EDTPA’s repeal to be retroactive would expose these people and establishments who relied on the EDTPA’s authorized protections to legal and civil liabilities that the Legislature by no means supposed,” stated legal professionals Henry Greenberg and Zackary Knaub of GreenbergTraurig, the agency that filed what’s often known as a “buddy of the court docket” temporary on behalf of Our Woman of Comfort in Zayas’ case. “Doing so would have far-ranging penalties, together with doubtlessly inhibiting the State’s response to future pandemics and mass-casualty occasions.”
The court docket papers warned towards retroactively repealing the “secure harbor to frontline staff and care amenities” that was supplied by the state Legislature “in the course of the hardest of occasions.”
“As New York turns a nook on its restoration from this devastating illness, Courts, in deciding circumstances arising out of the pandemic, mustn’t neglect the necessary goal that immunity statutes just like the EDTPA play in permitting healthcare professionals and establishments to protect the lives of these affected by COVID-19 with out worry of legal responsibility,” the doc stated.
The hospital and nursing residence foyer teams additionally declare {that a} federal legislation — the Public Readiness and Emergency Preparedness Act — pre-empts any state legislation concerning negligence circumstances in the course of the COVID outbreak.
Greater than 53,000 New York State residents have died from COVID, in response to Johns Hopkins College knowledge and statistics from the state Well being Division present greater than 15,000 of them have been dwelling in nursing houses — a quantity that was coated up for months by the Cuomo administration.
Zayas’ legal professional, Brett Leitner, ripped the group’s try to get her go well with dismissed.
“Solely after it was uncovered that they have been hiding the quantity of deaths, and after the AG Letitia James blasted the nursing houses for his or her reckless conduct, have been we capable of repeal this ridiculous legislation which stripped 1000’s of grieving households of their proper to sue,” he stated.
“The GNYHA, and their members, are unquestionably extraordinarily involved, and they need to be. If we’re permitted to interact in discovery and depose the related witnesses, I imagine the proof of negligence and recklessness might be stunning.”
The language within the legislation that repealed the immunity afforded to the healthcare business doesn’t explicitly say it may be utilized retroactively.
However Assemblyman Ron Kim (D-Queens) believes it might.
“The hospitals and nursing houses try to guard their backside line. It has nothing to do with the wants of sufferers or residents,” stated Kim, a staunch critic of Cuomo who filed an affidavit with the court docket in assist of Zayas’ go well with.
“The immunity legislation I imagine was unconstitutional and may by no means have occurred.”
